There is no question that Abel Hidalgo has committed some awful crimes. As a gang member in Arizona, he accepted $1,000 in 2001 to murder auto repair shop owner Michael Cordova then he killed another man, Jose Rojas, who showed up at the shop at the wrong time. It took a year and an informant’s tip to lead police to Hidalgo, who by then was in federal prison for the drug-related murders of two women (one a former girlfriend) on a Native American reservation in Idaho.
Hidalgo is just the kind of person from whom society needs to be protected, and he should be locked away. A more complicated question — even for those who support capital punishment — is whether an Arizona jury was right to sentence him to death.
The U.S. Supreme Court has held that states must design their capital punishment statutes so that only truly egregious crimes are punished by death. But the Hidalgo case argues that Arizona has added so many “aggravating circumstances” — factors that turn a typical killing into a capital crime — that many murders in Arizona now qualify for the death penalty.
Hidalgo’s argument circles back to two key Supreme Court decisions in the 1970s. The 1972 Furman decision struck down the death penalty entirely on the grounds that it was being applied so arbitrarily that it violated the 8th Amendment’s prohibition against “cruel and unusual punishments.” States then rewrote their death statutes to reduce their arbitrary application, and in 1976 the court ruled that the death penalty could resume in states with statutes limiting the death penalty to particularly atrocious crimes.
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The Hidalgo case argues that Arizona’s list of death-eligible crimes is so big that its entire capital punishment system is unconstitutional, and he has a point. If states are going to engage in such a practice, they must at least follow the Constitution, and we hope the Supreme Court accepts the case and strikes down such broad definitions of death-eligible crimes.
But Hidalgo raises another more challenging issue and could conceivably lead to an even more radical decision. The death penalty, Hidalgo argues, is inherently unconstitutional because the nation has been unable to use it without descending into an unreliable system in which the poor and minorities are disproportionately affected, and too many innocent people have been sentenced to death. There have been 117 death row exonerations since 1989. Exonerations often don’t come until years after conviction.
Meanwhile, executions often occur so long after the underlying crime was committed that they serve no penological purpose. So far this year, 23 people have been executed after spending an average of 19 1/2 years on death row.
Whether Hidalgo’s case is the one that will finally get the court to recognize the fatal flaws in the death penalty is hard to say. But we hope so. It’s a medieval system too fraught with human error to be relied upon for determining whether someone should live or die.